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Official Opinion 96-18

Official Opinion 96-18

September 20, 1996

To:

Director State Elections Division

Re:

Official Code of Georgia Annotated ¿ 21-2-76 does not prohibit persons who hold office in political parties from serving as members of county boards of elections or boards of elections and registration as created under O.C.G.A. ¿ 21-2-40.

You have requested my opinion as to "whether members of a board of elections or board of elections and registration created under O.C.G.A. § 21-2-40 are deemed to serve as 'county election superintendent' within the meaning of this statute and whether such individual members of a board of elections or board of elections and registration may hold political party office in their individual capacities." It is my official opinion that such board members are not county election superintendents within the meaning of the statute and are not prohibited from simultaneously serving in political party office.

Official Code of Georgia Annotated § 21-2-76 states:

No person who holds office in a political party at any level of such political party shall be eligible to serve as county election superintendent during the term of such political party office. On and after the effective date of this Code section, the

position of any county election superintendent shall be deemed vacant upon such superintendent's assuming a political party office.

Clearly, under the statute, a political party office holder may not directly serve as county election superintendent. Superintendent is defined as "either the judge of the probate court of a county or the county board of elections if a county has such." O.C.G.A. § 21-2-2(30). The question then is whether an individual member of a board, where the board serves collectively as county elections superintendent, may hold political party office.

It is my opinion that such a board member may hold political party office for the following reason. Section 21-2-76 must be read in pari materia with related statutes that were enacted simultaneously. During the same legislative session in which it passed Section 21-2-76, the General Assembly explicitly prohibited persons holding political party office from simultaneously serving as chairpersons of county boards of elections. O.C.G.A. § 21-2-75(b). During that session, it also explicitly prohibited persons holding elective public office from simultaneously serving as members of county boards of elections. O.C.G.A. § 21-2-75(a).

The General Assembly did not, however, explicitly prohibit individuals holding political party office from serving as members of county boards of elections. It is clear that the General Assembly did not intend for such a prohibition to reach individual members of a board. In the title of the act itself, 1996 Ga. Laws 1216, they made clear that any disqualification by reason of holding such office extended only to individuals serving either as election superintendent or the chairperson of a board of elections. This prohibition is specifically adopted in O.C.G.A. §§ 21-2-75 and 21-2-76.

If the General Assembly had intended for this prohibition to reach other individual members of elections boards, these specific prohibitions would not have been necessary. The General Assembly could merely have prohibited a political office holder from serving as a member of the board itself. Under the principle of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), one can reasonably infer that the General Assembly did not intend to prohibit board members, other than chairpersons, from holding political party office when it passed Section 21-2-76.

It is, therefore, my official opinion that O.C.G.A. § 21-2-76 does not prohibit political party office holders from serving as members of county boards of elections or boards of elections and registration.